This blog highlights Copyright, Fair Use, Patent, Trademark, Trade Secret and "Open" Movement-related topics—Open Access, Open Data, Open Government, Open Software, Open Science, Open Education—which are explored in the LIS 2184: Intellectual Property and "Open" Movements and LIS 2194: Information Ethics graduate courses I teach at the University of Pittsburgh School of Computing and Information.

"Many of the public comments decrying the settlement come from Google's largest competitors. The Internet Archive, which has scanned 1.5 million books to date, claims that Google will monopolize the market for orphaned texts. But the comments by the Archive and others ignore a crucial fact.

The fact that orphan works are out of print implies that these books have little if any market value, and publishers do not consider them profitable to sell. Therefore, they are only available at the few libraries that stock them. In this state, orphan works are unlikely to ever be rediscovered by the market or gain popularity.

Digitizing orphan works will make them available, but there is no guarantee they would acquire market value or earn a profit. Google is paying a high upfront cost for this gambit in both infrastructure investment and settlement payments.

Given all that investment, antitrust penalties on Google would allow its competitors to free-ride on its investment. Internet Archive President Peter Brantley has advocated requiring open access to the orphan works. In practice, that would mean that after Google pays to scan all orphan works, its competitors will be able to pick and choose which ones to offer...

Google is creating a market for orphan works and is making them available for widespread access. Antitrust interference will only distort market incentives and hinder the growth of this nascent sector."